Federal Sentencing Guidelines

The United States Sentencing Commission has promulgated a sentencing system that provides a range of months that a defendant must be sentenced too based on criminal history and the current crime charged. Federal judges follow these guidelines on almost every case.

Enhancements– these are also referred to as upward departures. An upward departure or enhancements will be based upon a Defendant’s prior criminal history, uncharged acts from the underlying case, the amount of drugs involved in the conspiracy, the amount of money involved, the injury to a victim, and many other factors that may not appear until after a plea or conviction.

Victim Related Adjustments– these are also sentencing enhancements or upward departures. However they are based on the vulnerableness of the victim, i.e., an elderly individual who is the victim of bank fraud, wire fraud, or identity theft. The government will seek a higher sentence based on the condition of the victim. The government will also seek a higher sentence if the victim is an official of the government. Examples would be postal fraud, bank fraud from an FDIC Bank, or Medicare Fraud.

Aggravating Role– if the defendant is a leader, organizer, or manager in the charged offense, then the government will seek to enhance the sentence. This occurs when a Defendant takes some step to further a criminal enterprise. In a Racketeering case this would amount to instructing another Defendant on how to perform a job or where to take illegal proceeds to be laundered. It does not take much involvement for this enhancement to apply in a federal indictment.

General Enhacements or Upward Departures:

Use of a Minor in the crime

Use of body armor in drug trafficking or violent crimes

Obstruction of justice, i.e. lying to a federal office

Committing a new offense while on supervised release

After a guilty plea or a conviction after trial, the United States Probation Office will conduct an investigation into the facts that the United States Attorney’s Office proffers. Basically the Probation Office works for the Judge your case is before, but the Probation Officer uses your indictment and information from the United States Attorney to formulate facts they believe show your relevant criminal conduct. The United States Probation Officer will interview the Defendant with or without the Defense attorney being present. It is preferable that the Defense Attorney is present for this interview, in order to protect the Defendant from any misstatements.

Downward Departures– these are mitigating factors to a sentence and are usually addressed by . A downward departure can be based on several factors. No criminal history, acceptance of responsibility (§3E1.1), rehabilitative actions by the defendant after the arrest and prior to sentencing, or actions by the defendant to cooperate with the government.

The most commons issue addressed by any defendant is acceptance of responsibility. This is usually the grounds for a two level downward departure. Acceptance of responsibility can also be used to break a mandatory minimum prison sentence. An example would be a case where the defendant is charged with trafficking in cocaine and is facing a 5 year mandatory prison sentence. The only way to get below the 5 year mandatory minimum is to accept responsibility and have no prior criminal history or be found not guilty at trial.

A downward departure may be requested based on a defendant’s prior criminal history in very rare situations. The primary example is when a defendant’s criminal history substantially over states the serious of the defendant’s history. Rarely will this departure be granted.

Other Departures

The primary tool that the government uses to get defendant’s to cooperate is Substantial Assistance to Authorities or as it is commonly referred to as a §5K1.1. The problem with this promise to lower the defendant’s sentence is that the judge will make the final determination on what an appropriate reduction will be in each specific case.

The court may depart from the guideline range in many cases where there exists an aggravating or mitigating circumstance.

Child crimes and sexual offenses are available for departures only if the court finds there are grounds that allow mitigation and the circumstance for this mitigation are identified as a permissible ground of downward departure in the relevant sentencing guidelines. This will be a rare downward departure.